Decided on January 12,1963

BALA NAND Appellant
DEVKI NAND Respondents


C.B. Capoor, J.C. - (1.) This application in revision by Bala Nand and Ram Nath is directed against an order of Shri Prem Lal Sharma Subordinate Judge Theog whereby the order dismissing the suit filed by the respondents against the petitioners and some others was set aside and the suit was restored to its original number.
(2.) The respondents had filed a suit against the petitioners and some others. The case was adjourned to 18-6-62 at the request of the plaintiff respondents in order to enable them to take steps and file process fee to get service effected on some of the defendants. On the aforesaid date the plaintiff respondents did not take the requisite steps and the learned Sub-Judge dismissed the suit under Order 17, Rule 3 of C. P. C. Thereafter an application purporting to be under Order 9, Rules 4 and 9) of the C. P. C. was filed on behalf of the plaintiff respondents praying for the setting aside of the order of dismissal. Notice of this application was not issued to the petitioners or the other defendants. The learned Court was of the opinion that the suit was wrongly dismissed under Order 17, Rule 3 of C. P. C. and the appropriate provision under which it could have been dismissed was Order 9, Rule 2 of C. P. C. It, accordingly accepted the petition and restored the suit to its original number.
(3.) On behalf of the petitioners the following contentions have been raised: (1) That the order of dismissal dated 18-6-62 was rightly passed under Order 17, Rule 3 of C. P. C. and an application for restoration under Order 9, Rules 4 and 9 of C. P. C. did not lie. (2) That in any view of the case the order sought to be revised was bad in law as notice of the application filed by the plaintiff respondents under Order 9, Rules 4 and 9 of C. P. C. was not issued to them. FINDINGS Point No. 1. Order 17, Rule 3 of C. P. C. reads as below: "Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the suit forthwith.";

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